# C_2019328EN.01000201.xml

| 30.9.2019 | EN | Official Journal of the European Union | C 328/2 |
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30.9.2019

EN

Official Journal of the European Union

C 328/2

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 27 May 2019 — WWF Italia o.n.l.u.s. and Others v Presidenza del Consiglio dei Ministri, Azienda Nazionale Autonoma Strade SpA (ANAS)

(Case C-411/19)

(2019/C 328/02)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: WWF Italia o.n.l.u.s., Lega Italiana Protezione Uccelli o.n.l.u.s., Gruppo di Intervento Giuridico o.n.l.u.s., Italia Nostra o.n.l.u.s., Forum Ambientalista, FC and Others

Defendants: Presidenza del Consiglio dei Ministri, Azienda Nazionale Autonoma Strade SpA (ANAS)

Questions referred

| 1. | Does Article 6 of Directive 1992/43/EEC, (1) in conjunction with Directive [2009/147/EC] (2) where applicable to the present case, preclude national primary legislation and the related secondary implementing legislation ... which allow the body ‘with final responsibility’ — competent to adopt the environmental compatibility measure for the preliminary project for works in the event of the reasoned objection of the Italian Ministry for the Environment and Protection of Land and Sea [(‘MATTM’)] — to provide approval, thereby allowing the procedure to continue, relying on the existence of an overriding public interest, whereas the State body responsible for environmental protection has stated that it is impossible to prepare any mitigation requirements and measures for the version of the project under approval, in respect of which a negative opinion regarding environmental impact assessment [(‘EIA’)] had already been expressed? |
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1.

Does Article 6 of Directive 1992/43/EEC, (1) in conjunction with Directive [2009/147/EC] (2) where applicable to the present case, preclude national primary legislation and the related secondary implementing legislation ... which allow the body ‘with final responsibility’ — competent to adopt the environmental compatibility measure for the preliminary project for works in the event of the reasoned objection of the Italian Ministry for the Environment and Protection of Land and Sea [(‘MATTM’)] — to provide approval, thereby allowing the procedure to continue, relying on the existence of an overriding public interest, whereas the State body responsible for environmental protection has stated that it is impossible to prepare any mitigation requirements and measures for the version of the project under approval, in respect of which a negative opinion regarding environmental impact assessment [(‘EIA’)] had already been expressed?

| 2. | Do the abovementioned directives preclude a solution such as that adopted which, for the purposes of approving the preliminary project for works subject to the EIA procedure, has the ‘overriding public interest’ referred to take precedence over the environmental interest — even though that overriding interest is based exclusively on the more economical nature of the works, their compliance additionally with landscaping, historical, cultural and socio-economic protection and the need to complete a trans-European road network, in the present case the TEN-[T] network defined as ‘Comprehensive’, as by Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 (3) — despite the fact that there is an existing alternative solution already approved from an environmental perspective? |
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2.

Do the abovementioned directives preclude a solution such as that adopted which, for the purposes of approving the preliminary project for works subject to the EIA procedure, has the ‘overriding public interest’ referred to take precedence over the environmental interest — even though that overriding interest is based exclusively on the more economical nature of the works, their compliance additionally with landscaping, historical, cultural and socio-economic protection and the need to complete a trans-European road network, in the present case the TEN-[T] network defined as ‘Comprehensive’, as by Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 (3) — despite the fact that there is an existing alternative solution already approved from an environmental perspective?

| 3. | Is a solution such as that adopted, whereby it was considered possible to postpone to the stage of the definitive project further assessment and studies of the environmental significance of the route not approved in terms of EIA — including the Assessment of Environmental Implications — instead of requiring the proponent of the works to carry out further assessment and studies to mitigate the economic and landscaping effects on the alternative route already approved, on the other hand, from an environmental perspective, compatible with the abovementioned Community legislation? |
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3.

Is a solution such as that adopted, whereby it was considered possible to postpone to the stage of the definitive project further assessment and studies of the environmental significance of the route not approved in terms of EIA — including the Assessment of Environmental Implications — instead of requiring the proponent of the works to carry out further assessment and studies to mitigate the economic and landscaping effects on the alternative route already approved, on the other hand, from an environmental perspective, compatible with the abovementioned Community legislation?

| 4. | In such circumstances and if the answer to the first, second and third questions is that there is compatibility [with EU law], do the abovementioned directives preclude a solution such as that adopted, which does not consider binding a negative opinion indicating environmental incompatibility, issued by the competent body in the course of the approval procedure for the preliminary project for the works, postponing to the stage of the definitive project more in-depth assessment of the impact thereof on the territory’s landscaping and environmental aspects, with specific reference to the assessment of environmental implications and the consequent provision of sufficient measures for the compensation and mitigation of impacts? |
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4.

In such circumstances and if the answer to the first, second and third questions is that there is compatibility [with EU law], do the abovementioned directives preclude a solution such as that adopted, which does not consider binding a negative opinion indicating environmental incompatibility, issued by the competent body in the course of the approval procedure for the preliminary project for the works, postponing to the stage of the definitive project more in-depth assessment of the impact thereof on the territory’s landscaping and environmental aspects, with specific reference to the assessment of environmental implications and the consequent provision of sufficient measures for the compensation and mitigation of impacts?

| 5. | Do the abovementioned directives preclude a solution such as that adopted, where the proponent of the works is requested at the stage of drafting the definitive project for the works to take into account the requirements, observations and recommendations in relation to landscaping and the environment set out in the course of the interdepartmental conference held with regard to the preliminary project, even if in that regard the body responsible for environmental protection has found that it is impossible to develop any mitigation requirements and measures for the project under approval? |
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5.

Do the abovementioned directives preclude a solution such as that adopted, where the proponent of the works is requested at the stage of drafting the definitive project for the works to take into account the requirements, observations and recommendations in relation to landscaping and the environment set out in the course of the interdepartmental conference held with regard to the preliminary project, even if in that regard the body responsible for environmental protection has found that it is impossible to develop any mitigation requirements and measures for the project under approval?

| 6. | Do the abovementioned directives preclude a solution such as that adopted where the proponent has also been requested to develop the environmental impact study for the works, including the so-called ‘appropriate assessment’, duly drafted in accordance with the legal requirements in force, which would serve as the basis for the assessment of implications in question? |
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6.

Do the abovementioned directives preclude a solution such as that adopted where the proponent has also been requested to develop the environmental impact study for the works, including the so-called ‘appropriate assessment’, duly drafted in accordance with the legal requirements in force, which would serve as the basis for the assessment of implications in question?

| 7. | Do the abovementioned directives preclude a solution such as that adopted, where a third party (the Lazio Region) has been identified, different from the body ordinarily responsible (the [Environmental Impact Assessment — Strategic Environmental Assessment] EIA-SEA Committee of the MATTM), to verify the environmental impact study annexed to the definitive project for the works, in order also to identify any subsequent mitigation and compensation measures necessary to protect and safeguard the environmental and landscaping aspects of the territory concerned, leaving to the MATTM’s EIA-SEA Committee, in accordance with and for the purposes of Article 185(4) and (5) of Legislative Decree No 163/06, only the ex post formulation of its own opinion as to whether the definitive project for the construction of the route in question complies with the landscaping and environmental requirements, after the abovementioned verification? |
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7.

Do the abovementioned directives preclude a solution such as that adopted, where a third party (the Lazio Region) has been identified, different from the body ordinarily responsible (the [Environmental Impact Assessment — Strategic Environmental Assessment] EIA-SEA Committee of the MATTM), to verify the environmental impact study annexed to the definitive project for the works, in order also to identify any subsequent mitigation and compensation measures necessary to protect and safeguard the environmental and landscaping aspects of the territory concerned, leaving to the MATTM’s EIA-SEA Committee, in accordance with and for the purposes of Article 185(4) and (5) of Legislative Decree No 163/06, only the ex post formulation of its own opinion as to whether the definitive project for the construction of the route in question complies with the landscaping and environmental requirements, after the abovementioned verification?

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(1)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

(2)  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).

(3)  Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU (OJ 2013 L 348, p. 1).

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